Hudson v. Greenwich I Associates

226 A.D.2d 119, 640 N.Y.S.2d 46, 1996 N.Y. App. Div. LEXIS 3313

Opinion

Order, Supreme Court, New York County (Joan Lobis, J.), entered June 1, 1994, which granted defendant’s motion to dismiss plaintiffs third cause of action for fraud, unanimously affirmed, without costs.

Plaintiff alleged in his cause of action for fraud that defendant never intended to carry out its promises contained in a contract for renovation of the building in which plaintiff resides. The IAS Court correctly granted defendant’s motion to dismiss that cause of action since "[a] contract action may not be converted into one for fraud by the mere additional allegation that the contracting party did not intend to meet his contractual obligation” (Comtomark, Inc. v Satellite Communications Network, 116 AD2d 499, 500; Rocanova v Equitable Life Assur. Socy., 83 NY2d 603, 614; see, Briefstein v Rotondo Constr. Co., 8 AD2d 349). Plaintiffs affidavit in opposition to the motion, alleging that defendant did not intend to perform in accordance with a set of building plans that was incorporated by reference in the contract, did not convert plaintiffs breach of contract claim into one for fraud. Concur— Rosenberger, J. P., Wallach, Kupferman, Nardelli and Williams, JJ.